Trump has repeatedly said that Biden wants to pack the courts, this likely wouldn’t work because of the Senate filibuster. Although hard, if one party were able to obtain 60 seats in the Senate, Congress could theoretically change the number of Supreme Court justices to anything and the president would effectively erase previous presidents’ nominees.

Did the Framers ever imagine this scenario and if so what did they think about it?


1 Answer 1


tl;dr They never said anything about it.

The framers likely didn't envision the courts playing as a large role as they do today.

Thomas Jefferson (not technically one of the 55 framers, but influential on them) went so far as to say that the new universally accept notion judicial review itself was nonsensical:

If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide].

For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others...The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

While this was not the opinion of the Federalists, suffice it to say, in general the courts were not seen as politically significant as they are today.

As far as I know, no framer discussed the possibility -- for or against -- of increasing the size of judiciary for political purposes. There were controversies over appointments, but not the size itself.

Yes, the size of Supreme Court changed over time. That is was because the structure assigned Supreme Court Justices to circuits, making their number proportional to the number of circuits need to address cases.

But not until 1936 was there serious suggestion of altering court size to produce favorable outcomes.

So in short, we have no idea what the framers thought about this.

  • 4
    There were several tweaks in the size of the court from 1789-1867 not entirely free of a desire to produce favorable outcomes. But the pre-Civil War scope of the federal government relative to that of the states was tiny and SCOTUS was immersed in direct review of lower court cases because there weren't intermediate appellate courts until the 1890s. Bill of rights litigation was negligible prior to the 1910s. The 1930s New Deal and then WWII was a second big surge in the scale of the federal government. And life expectancies have increased since 1789 too making life terms a bigger deal.
    – ohwilleke
    Mar 11, 2021 at 4:02
  • @ohwilleke which change in particular was made to sway judicial opinion? Mar 11, 2021 at 13:47

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